ZAHRI AND KASSAB v. DENKYIRA (AMPOMA – CLAIMANT) [1961] GLR 419

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 26TH JUNE, 1961

BEFORE: OLLENNU J.

CASES REFERRED TO

(1) Mackay v. Douglas (1872) L.R. 14 Eq. 106.

(2) Sasraku v. David & Ors. [1959] G.L.R. 7, C.A.

(3) Addai v. Bonsu II [1961] G.L.R. 273.

NATURE OF PROCEEDINGS

INTERPLEADER action by claimant seeking to have certain property released from attachment on the ground that prior to the attachment the said property had been sold to her by the judgment debtor.

COUNSEL

E. D. Kom for S. A. X. Tsegah for the claimant.

E. Akufo-Addo for Bannerman for the (plaintiffs) judgment – creditors.

JUDGMENT OF OLLENNU J.

The plaintiffs-execution-creditors filed a writ of summons against the defendant-execution-debtor on the 1st October, 1960; the defendant entered appearance to the said writ on the 8th October, 1960, and in November, 1960 the plaintiffs had judgment entered for them against the defendant on their claim. They went into execution upon the said judgment and on the 13th December, 1960, had the property, the subject-matter of this suit, and other properties attached under a writ of fi.fa., whereupon the claimant interpleaded claiming that the execution-debtor had no attachable interest in the said property at the date of the attachment, and that whatever right, title and interest she had in the same was transferred by the execution-debtor to her sometime in October 1960, for valuable consideration; and that the said alienation was confirmed by a deed of conveyance dated October, 1960 and registered in the Deeds Registry on the 9th December, 1960, as No. 2501/1960.

The execution-creditors denied that there had been a sale of the property to the claimant as alleged, and put the claimant to strict proof of the sale. They pleaded further that if there was a sale as alleged,

(1) the same was null and void as it was done without the previous consent and concurrence of the chief of Lagos Town and Chief Braimah,

(2) the possession which the claimant might have had of the premises was simply as a licensee and nothing more, and

(3) the said sale was in fraud of the execution-creditors’ claim against the execution-debtor for the debt she owed them.

[p.421] of [1961] GLR 419

Having seen and heard the claimant, an old woman, in the witness box, I am satisfied that she is a truthful witness. Her evidence under cross-examination was straight forward, clear and to the point.

She appeared to me as laying all her card on the table face upwards. She did not hesitate to admit that she lives in the same house with the execution-debtor. She even volunteered evidence that it was she who brought the execution-debtor up and that she knew of a court case which the execution-debtor had with one Grumah which said case involved the execution-debtor in debt. I accept her evidence that some time ago, in consequence of information she had, she had to come down to Accra from her village up-country to see the execution-debtor; that when she came the execution-debtor confirmed to her the information she had received that she the execution-debtor was disposing of some of her properties; that Grumah’s case had involved her in debt, and so she was disposing of some of her properties to raise money to pay her creditors, and she thereupon purchased from her the swish or mud house in Accra in which she used to stay and paid her £G99 for the same. I also accept her evidence that she had spent a lot of money on the execution-debtor in the past, and she could no longer afford to give gratuitous financial assistance to her, and she must have value for her money, and further that she had to buy the house because if it was sold to some other person she would not have a place to stay when she came to Accra.

The only evidence on record of the circumstances under which the claimant purchased the house is the evidence given by the claimant herself. There was nothing to refute or even create a doubt that she is a bona fide purchaser for value. It was submitted on behalf of the execution-creditors that having regard to the relationship which exists between the claimant and the execution-debtor, the court should hold that the claimant stood in loco parentis to the execution-debtor, and presume that she, the claimant knew all the affairs of the execution-debtor and must be deemed to have had the building conveyed to her gratuitously in fraud of the execution-creditors, as at the date of the conveyance exhibit A they had an action pending in court against the execution-debtor. Counsel referred the court to the Statute of Fraudulent Conveyances, 1571,1(9) which, he submitted, is a statute of general application and therefore applicable to Ghana, and to the case of Mackay v. Douglas2(10).

There is no doubt that the Statute of Fraudulent Conveyances, 1571, is a statute of general application and is in force in Ghana by virtue of section 154 (4) of the Courts Act, 19603(11). But unlike the case of Mackay v. Douglas, the transaction in the present suit is not a voluntary settlement, it is a conveyance for valuable consideration without knowledge of any intention to defraud the execution-creditors, or any creditors for that matter. Accepting as I do the evidence of the claimant that the execution-debtor told her that she was selling some of her properties to raise money [p.422] of [1961] GLR 419 to pay her creditors, I fail to see how upon those facts she could be said to be seized of knowledge that the purpose of the disposal of the property was to defraud creditors. On the contrary, I should have thought that the impression any reasonable person would get upon those facts is that the execution-debtor was making a genuine and honourable effort to settle her debts. If she had wanted to be a party to a fraud why buy just a swish house and not a more valuable property or all the properties the execution-debtor was offering for sale?

Upon the facts before the court I hold that this case comes within section 6 of the Statute of Fraudulent Conveyances, 1571, which provides that the Act should not apply to bona fide purchasers for value.

Counsel for the execution-creditors next submitted that the conveyance by the execution-debtor to the claimant is null and void because it was made without the consent and concurrence of D.W.2 who alleged he was the chief of Lagos Town, and of Chief Braimah, chief of the Lagosian community in Accra. This submission was based upon the evidence given by the said D.W.2 that he granted the land in dispute to one Madam Fatima on lease and that by Lagos custom applicable to the land the tenant could not let any building he erects on the land or sell the land with the buildings thereon without the prior consent and concurrence of himself and of Chief Braimah who holds the land as a tenant of Atukpai family of Accra. In the first place the land and buildings in dispute are described as situate at Accra New Town, whilst the land which D.W.2 said he granted was situate at Lagos Town. It has not been shown that Lagos Town is the same place as Accra New Town; the court cannot presume that these are identical.

In the second place, Fatima the alleged tenant of D.W.2 has not in any way been identified with the execution-debtor and therefore it cannot be said that any condition of a lease granted to Fatima is binding upon the execution-debtor.

Thirdly, Chief Braimah’s own lease has not been produced to show the terms on which he himself holds the land, if indeed he is a head tenant of it as alleged. Again the court has not been told the nature of the lease to the execution-debtor, whether written or oral. Above all since the land is Ghana land situate in Accra, obtained from an Accra family, the only law or custom applicable to it is Ghana customary law relating to Accra; see section 66(1), rule 4 of the Courts Act, 1960. Lagos custom cannot apply to land in Accra, and in so far as that custom could be said to be applicable by reason of a contract, the said contract has not been proved.

Finally, counsel for the execution-creditors submitted that the deed of conveyance exhibit A is null and void and ineffective and the claimant acquired no title thereby because it purported to convey a freehold estate, whereas upon the evidence of the second witness for the execution-creditors all the right title and interest which the execution-debtor had in the property [p.423] of [1961] GLR 419 is a leasehold. By such a conveyance, counsel submitted, the execution-debtor purported to convey an estate which she herself had not got.

This submission of learned counsel is based upon the supposition that the execution-debtor was only a lessee of the premises and had no higher interest than that. The submission is untenable, first of all,nbecause there is no credible evidence that the execution-debtor was a lessee, therefore there are no premises for the submission. But even if it had been proved that the whole of the right title and interest which the execution-debtor had in the property is a leasehold, a grantee from her would not acquire a higher estate in the land simply because the conveyance is worded as if it conveys one. Where an owner of a limited estate or interest in land conveys his said interest in the land, and the conveyancer in drafting the deed employed words which purport to transfer a higher estate or interest than is vested in and offered by the grantor, the conveyance would not become null and void sim;y because of that error on the part of the conveyancer; the document will nevertheless be effective to pass just that title which the grantor had, but no more, and the courts will interprete the operative words of transfer, e.g. “To X in fee simple” or “T X to hold the freehold” as a transfer to X of the whole of the estate or interest possessed by or vested in T the vendor whatever that may be: see Sasraku v. David & ors.4(12) and Addai v. Bonsu II 5(13) etc. But where a limited owner in denial of the title of the holder of a higher title in the land, e.g. where a tenant, a busa or otherwise, denies the title of his landlord, holding himself out as able to transfer a higher title deliberately offers to transfer that higher title, he, the limited owner, renders himself liable to forfeiture of his estate or interest in the land. It must be noted, however, that in such a case of forfeiture will be at the instance of the grantor or landlord of the limited owner, and not at the instance of a third party. In other words, the transfer by the limited owner, if in denial of his grantor’s title, is voidable not void; it can only be avoided at the instance of the holder of the higher title not at the instance of strangers to the transactions. The execution-creditors are stranfers to the transaction between the execution-debtor and her grantor, therefore they cannot be heard to say that the form of the conveyance, exhibit A, amounts to a denial of the title of the grantor to the execution-debtor, and is therefore null and void.

And lastly, even if the execution-debtor had been proved to be only a limited owner, i.e. a tenant, and even though in the recitals in the deed of conveyance, exhibit A, she is described as being “seized in fee simple free from incumbrances” yet in the habendum all she purported to convey to the claimant is as follows: “And all the estate right title interest claim and demand whatsoever of the said Vendor into and upon the said land and hereditaments and every part thereof. To Have and to Hold the same unto and to the use of the Purchaser—Her successor and assigns”. And it must be observed that it is the same right, title and interest of the execution-debtor which the execution-creditors are seeking to sell by their attachment, so that if any right, title and interest in the attached property were vested [p.424] of [1961] GLR 419 in the execution-debtor at the date of the attachment the attachment would have been in order and the sale could proceed. The evidence before the court, however, shows that she had transferred all the right, title and interest she had to the claimant before the 13th December, 1960, the date of the attachment. Therefore the claimant had discharged the onus upon her, and her claim must be allowed. The claim is allowed and it is ordered that the property be released from attachment forthwith. The claimant will have her costs fixed at 50 guineas inclusive.

DECISION

Judgment for claimant.